John Q. Barrett: Jackson List: "Fool's Errands" & Innocence in American Law

[Mr. Barrett is the editor of the memoirs of of Supreme Court Justice Robert Jackson. He is a Professor of Law at St. John's University in New York City, where he teaches constitutional law, criminal procedure and legal history, and he is the Elizabeth S. Lenna Fellow at the Robert H. Jackson Center in Jamestown, New York.]

For the Jackson List:

In 1989, off-duty Savannah, Georgia, police officer Mark MacPhail, responding to a report that a homeless man was being beaten in a restaurant parking lot, was shot multiple times and died. Another man, Troy Davis, subsequently was arrested and charged with the murder. Although he at trial denied guilt and claimed that another man was the shooter, the jury heard and apparently believed witnesses who implicated Davis—the jury convicted him and sentenced him to death.

In subsequent years, seven of the State’s nine trial witnesses against Davis signed affidavits recanting their testimony. Another of the State’s trial witnesses reportedly confessed to shooting Officer MacPhail. The Georgia Supreme Court, the United States Court of Appeals for the Eleventh Circuit and the Georgia Board of Pardons each has, in various and complex proceedings, nonetheless rejected Davis’s claim of “actual innocence” and affirmed his conviction and death sentence.

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Last week, the Supreme Court of the United States, acting during its summer recess, granted Davis’s request for federal court review of his innocence claim. A majority of the Justices, acting on Davis’s petition seeking a writ of habeas corpus directly from the Supreme Court itself, transferred his claim to a Federal District Judge in the Southern District of Georgia. The Supreme Court directed the District Judge to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis]’s innocence.”

Justice Antonin Scalia, dissenting from the Court’s action, filed an opinion calling Davis’s claim is a “sure loser.” Justice Scalia’s view is based on his understanding of the law, not the facts of Davis’s case. According to Justice Scalia, the Supreme Court has never held that the United States Constitution bars a State from executing an innocent person, so long as that person was convicted of capital murder and sentenced to death through trial processes that met all constitutional requirements. Because Davis is not contesting the fairness of trial procedures, wrote Justice Scalia (joined by Justice Clarence Thomas), the Federal District Judge is explicitly barred by the federal habeas corpus statute from granting Davis any relief. The Supreme Court has, according to Justice Scalia, sent the Federal District Judge “on a fool’s errand….”

Justice Scalia’s arguments in In re Davis, including his claim that a federal judge who finds a convicted prisoner to be actually innocent would be barred by the federal habeas corpus statute and under no constitutional duty to provide relief, did not go unaddressed in the Court. Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, filed a concurring opinion in which he explained his view that the District Judge could, if facts show Davis’s innocence, grant him relief, and that the Court’s decision to transfer the case to the District Court thus “is by no means ‘a fool’s errand.’” (Presumably at least two more Justices voted with these three to make up the Court’s majority. The Court announced that newly appointed Justice Sonia Sotomayor did not participate in the decision but did not specify how Chief Justice John Roberts, Justice Anthony Kennedy or Justice Samuel Alito voted.)

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Neither Justice Scalia nor, in his rejoinder, Justice Stevens, indicated anything about the source and original context of the phrase, “a fool’s errand,” that is the contested characterization of their legal disagreement. Dictionaries define “a fool’s errand” as a “completely absurd, pointless or useless” task, as “a fruitless mission or undertaking.”

In our idiom, the phrase came from the title of a hugely popular, best-selling novel of 1879, A Fool’s Errand, written by an anonymous author who is identified on the book as merely “One of the Fools.” The novel tells the story of a former Union soldier who after the Civil War buys a decayed southern plantation, moves his family to this new home and becomes known and hated by his neighbors as a Yankee “carpetbagger” working with former slaves and against the Ku Klux Klan. Near the end of the story, the protagonist offers these reflections on his experiences:

The North and the South are simply convenient names for two distinct, hostile, and irreconcilable ideas,—two civilizations they are sometimes called, especially at the South. At the North there is somewhat more of an intellectual arrogance; and we are apt to speak of the one as civilization, and of the other as a species of barbarism. These two must always be in conflict until the one prevails, and the other falls. To uproot this one, and plant the other in its stead, is not the work of a moment or a day. That was our mistake. We tried to superimpose the civilization, the idea of the North, upon the South at a moment’s warning. …[W]e tried to build up communities there which should be identical in thought, sentiment, growth, and development, with those of the North. It was A Fool’s Errand.”

The author of the book, it came to be known, was Albion Winegar Tourgée, a lawyer and writer who achieved great prominence in the late 19th century. The book is Tourgée’s fictionalized account of and reflections on his experiences as a Reconstruction-era judge inNorth Carolina.

After the collapse of Reconstruction, Tourgée returned to the North from his “fool’s errand.” He bought a grand home in Mayville, Chautauqua County, New York. He wrote this novel and many other books and pursued publishing ventures. He also pursued legal work and other causes. Under Presidents McKinley and Theodore Roosevelt, Tourgée represented the United States abroad. He died in France in 1905.

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All of this connects quite directly to Justice Robert H. Jackson. For most of the years 1913-33, Jackson practiced law in Jamestown, Chautauqua County, New York. Jackson often litigated cases in the county seat courthouse in Mayville, which is located at the north end of Chautauqua Lake opposite Jamestown. On a Wednesday afternoon in fall 1924, thirty-two year old Jackson, fellow Chautauqua County lawyers and others attended an auction in Mayville, in Albion Tourgée’s former home, of the late author’s effects. I do not know thatJackson bought anything that had once been Tourgée’s, but Jackson knew of the man and his work.

By 1950, Robert Jackson had been a United States Supreme Court justice for more than nine years (occupying the seat that is today occupied by Justice Scalia, who frequently states his admiration for Jackson). That spring, Justice Jackson and his fellow Justices were deciding three cases challenging the legality, including the constitutionality, of racial segregation laws pertaining to, respectively, a state university’s law school, another state’s graduate school, and interstate rail transportation. In his research, Jackson reread Plessy v. Ferguson, the Supreme Court’s 1896 decision affirming the constitutionality of Louisiana’s law requiring “separate but equal” railroad accommodations for black and white passengers. Jackson noticed, for the first time, the name of Homer Plessy’s attorney in the Supreme Court: Albion Tourgée. Jackson retrieved from Supreme Court archives and read Tourgée’s brief in the case. It of course had been, for him, another “fool’s errand”—the plaintiff Plessy and his lawyer Tourgée lost the case, their constitutional argument against racial segregation and, indeed, the votes of all but one Justice.

While the 1950 cases were pending, Justice Jackson confirmed confidentially with his former colleagues and continuing friends in Chautauqua County that Plessy’s lawyer Tourgée was the same man who had been their Mayville predecessor Tourgée. And within weeks, in those cases (Sweatt v. Painter, McLaurin v. Oklahoma State Regents, andHenderson v. United States) as in Brown v. Board of Education four years later, Justice Jackson and each of his Court colleagues voted to strike down the laws of racial segregation.